Ontario Review Board
Re: Cody Smith
ORB File No: 8801
Hearing held on: Thursday, September 4, 2025
Place of Hearing: Brockville Mental Health Centre
Pursuant to: Sections 672.47(1) and 672.48(1) of the Criminal Code
Before: Alternate Chairperson: Mr. P. Capelle Members: Dr. R. Kunjukrishnan Dr. W. Loza Ms. M. den Haan Ms. R. MacIntyre
Parties Appearing: Accused: Cody Smith Counsel: Mr. M. Davies
Person in charge of hospital: Representative: Dr. A. Adiele
Attorney-General of Ontario: Counsel: Dr. A. Findlay
REASONS FOR DISPOSITION
(Dated November 6, 2025)
Introduction:
On March 26, 2025, Cody Smith was found unfit to stand trial on account of mental disorder on Criminal Code charges of possession of weapon for dangerous purpose, failure to comply with probation order (x4), mischief under $5,000, assault (x3), theft under $5,000, and resisting arrest. The Court declined to make a disposition. At the time of the hearing, Mr. Smith was subject to a Warrant of Committal dated June 4, 2025, placing him at the Brockville Mental Health Centre (“BMHC” or the “Hospital”) pending a hearing.
On September 4, 2025, the Ontario Review Board (“ORB” or the “Board”) convened a hearing at BHMC to conduct an initial hearing into Mr. Smith’s fitness and, if found unfit, to determine the necessary and appropriate Disposition.
Mr. Smith was present for the hearing. Mr. Michael Davies was present as Amicus Curiae. He requested an order appointing counsel as the Criminal Code requires that an unfit accused be represented by counsel.
Positions of the Parties
At the outset of the hearing, the parties were canvased for their initial recommendations to the Board. On behalf of the Hospital, Dr. Adiele submitted that Mr. Smith remained unfit. He submitted that the necessary and appropriate Disposition was a Detention Disposition with the conditions listed at pages 60 and 61 of the Hospital Report, up to and including to live in the community of Ontario in approved accommodation.
Counsel for the Attorney General supported the recommendation of the Hospital both with respect to fitness and its recommendation for Disposition.
Mr. Davies indicated that he was unable to take a position.
For the reasons that follow and based on the expert evidence and opinions before it, the Board concluded that Mr. Smith remains unfit to stand trial. The Board also found that Mr. Smith represents a significant threat to the safety of the public. We accepted the position of the Hospital and Attorney General that a Detention Order with community living privileges is the necessary and appropriate Disposition.
Alleged Index Offences
On January 26, 2023, Mr. Smith entered a probation order in the City of Guelph for a term of two years with the condition to keep the peace and be of good behaviour.
On March 25, 2024, Mr. Smith entered a probation order in the City of Milton for a term of 12 months with the same condition as cited in item 8.
On June 24, 2024, Mr. Smith entered a probation order in the City of Guelph for a term of 15 months with the same condition as cited in item 8.
On September 13, 2024, Mr. Smith is alleged to have breached a probation order and to have been in possession of a weapon, having been seen holding a four-inch hunting knife while asking bystanders for money. He is then alleged to have approached a woman and small child while holding the knife.
On September 25, 2024, Mr. Smith is alleged to have assaulted a shelter worker by hitting him on the head with his hand. When asked to leave the shelter, Mr. Smith is alleged to have committed the offence of theft under $5,000 when he stole a teddy bear from the shelter. He is then alleged to have returned to the shelter and committed mischief under $5,000 by kicking and damaging a wall in the shelter when denied access to his former room. Mr. Smith is alleged to have resisted arrest following the incidents at the shelter.
Background Information
Mr. Smith is 30 years old and has been diagnosed with schizophrenia and borderline personality disorder.
Mr. Smith has been unable to provide a fulsome and reliable personal history due to his ongoing psychotic symptoms and thought disorganization. The Hospital Report notes that Mr. Smith’s mental state has only “marginally improved” since being found unfit by the Court in March 2025.
Dr. Adiele’s Fitness Report to Court dated May 24, 2025 notes that Mr. Smith was able to identify his mother, but identified his father as Shane Smith, also “Eminem,” or “Joel” from “30 years ago.” It is unclear if he has siblings, and the circumstances of his upbringing are unknown.
Mr. Smith likely completed Grade 10 before dropping out of school. It is unclear if he has ever been employed for any significant period and he is currently financially supported through the Ontario Disability Support Program.
Mr. Smith was first in contact with the mental health system on September 21, 2015, at which time he attended the Brampton Civic Hospital Emergency Department for depression, suicidal ideation, and self-harm. Although there is evidence that Mr. Smith attended emergency rooms between 2018 and 2021, there were no available electronic records.
From August 12 to September 2, 2021, Mr. Smith was admitted to Oakville Trafalgar Inpatient Psychiatry, where he was treated for psychosis. On September 3, 2021, Mr. Smith was admitted to Guelph General Hospital for an involuntary psychiatric assessment following bizarre behaviour and an assault committed at a bank. Mr. Smith was a patient at CAMH admitted from jail between February 23 and March 11, 2022, as he was presenting as disorganized and bizarre and deemed to be a risk to himself and others following refusal of medication while in custody. He was brought to Oakville Trafalgar Memorial Hospital by police for medication non-compliance on March 10, 2024, and remained for four days. On December 24, 2024, he was admitted to Halton Healthcare Milton District Hospital from Maplehurst Correctional Complex after ingesting multipurpose cleaner, presenting as actively psychotic.
Mr. Smith has an extensive 10-page criminal record with charges from Barrie, Guelph, Milton, Toronto, St. Catharines and Brampton dating back to 2012, when he was 17 years old. Convictions include assault, theft under $5,000, mischief under $5,000, possession of weapons, failure to comply with recognizance, failure to comply with undertaking, failure to appear, failure to comply with probation, obstruct peace officer, assault peace officer, possession of Schedule I and II substances, uttering threats, and possession of property obtained by crime. Mr. Smith’s CPIC also includes approximately 11 pages of withdrawn charges.
It is evident from the multiple jurisdictions in which Mr. Smith was charged with criminal offences that he has lived a transient life. It appears that he was frequently homeless and residing in shelters.
The hospital records available seem to indicate that Mr. Smith began using alcohol at age 17, then variously used crack cocaine, heroin, cannabis, and crystal meth, the last of which was noted to contribute to a September 2021 assault.
Evidence at the Hearing
The Hospital’s evidence was presented through a Hospital Report authored by Dr. Adiele dated August 7, 2025 (Exhibit 1) as well as through his oral testimony. The Hospital Report contains all of Mr. Smith’s fitness assessments.
Mr. Smith was admitted to BMHC on April 14, 2025. Dr. Adiele testified that Mr. Smith is compliant with his treatment but remains mentally unwell. Mr. Smith is currently on a high dose of antipsychotic medication; his weekly dose is a dosage that is usually given every two to four weeks to other patients. The injectable medication takes time to become fully effective, and it will take months for it to reach its full effect. The treatment team continues to titrate Mr. Smith’s medication, and when he becomes more stable, he will be moved to a less secure unit. At that time, the Hospital will begin to offer privileges which will begin with escorted access to Hospital grounds and then progress to independent access to Hospital grounds.
With medication, Mr. Smith’s mental state has improved. Mr. Smith has been aggressive, however, and most recently a staff member was seriously assaulted on June 21, 2025 (described at page 53 of the Hospital Report) and remains off work as a result. Because of this assault, Mr. Smith was moved into seclusion. In Dr. Adiele’s opinion Mr. Smith is very, very unwell and has a long way to go, but is improving. Since the assault in June there have been no further aggressive incidents.
Mr. Smith is originally from the Guelph area, and he is not very close to his family. He has not said much about his family members.
In response to questions from counsel for the Attorney General, Dr. Adiele testified that the most recent formal questioning of Mr. Smith with respect to his ability to understand the Taylor test questions was at the pre-Board conference in early August. Mr. Smith has been too ill to engage with education with respect to fitness, he is unable to stay long in conversations, and he begins to experience extreme distress. He can become angry if a question is repeated. His mental state is brittle, and the Hospital will gradually continue to educate him with respect to fitness.
While historically there have been suicide attempts, possibly while Mr. Smith was on methamphetamine and magic mushrooms, there have been no recent attempts. In Dr. Adiele’s opinion, Mr. Smith’s symptoms are more a result of schizophrenia than of depression. Depression is not a current concern although a clearer picture will emerge when symptoms of Mr. Smith’s psychosis clear.
Mr. Smith’s illness is very brittle, and he is quick to anger. This results in aggression. At a later date, the Hospital may consider treatment with clozapine.
In response to questions from Mr. Davies, Dr. Adiele testified that he has repeated the fitness assessment since May and followed a similar process during the pre-Board conference in early August. Mr. Smith had more knowledge about the court system than in May but is too unwell to respond and becomes very frustrated during questioning. Dr. Adiele hopes that as Mr. Smith becomes better, he will become fit. He is somewhat closer to fitness than he was in May, but not much.
Mr. Smith knows that he has been charged with a criminal offence and is able to provide some answers as to what might happen if he were in court. He understands that he has the option to plead guilty or not guilty and the consequences of the process. Dr. Adiele stated that Mr. Smith is unable to comprehensibly provide information about whether he understands the idea of punishment for the alleged Index Offences. He has an idea that a lawyer could assist him but is unable to articulate this fully. He was able to provide a name of a lawyer, and there have been efforts to call that person. Although Mr. Smith has an idea of what a judge does, it is not comprehensive. When asked what the Crown Attorney does, he stated “he does not say much.”
Mr. Smith and Dr. Adiele have spoken about some of the events around the alleged Index Offences and Mr. Smith has been able to provide a patchy, unclear account of his side of what occurred. Dr. Adiele believes this is a result of Mr. Smith’s currently impaired ability to organize his thoughts due to his schizophrenia.
Mr. Davies indicated that the Hospital Report before the Board was pessimistic, but now Dr. Adiele is voicing some optimism. Dr. Adiele stated that Mr. Smith was so unwell when he came to the Hospital that he required seclusion and accepted food and drink and that was all.
The Hospital does not have access to any of Mr. Smith’s previous records and the social work department is trying to obtain access to past records. The Hospital can see what medications have been prescribed in the past through Connecting Ontario, although the hospital reports that they have located have not been fulsome.
Mr. Smith is currently residing on B4-S which is the most acute ward. Mr. Smith has access to the yard to play basketball in a secure area. For him to receive the privilege of 1:4 supervised grounds access, the Hospital requires a Disposition.
Mr. Smith knows how to use Facebook and remembers his password. The treatment team was able to send Mr. Smith’s mother a message this way, although Mr. Smith did not remember her name. His mother called the Hospital but did not call again. The Social Work department has indicated that his family is reluctant to engage, and the treatment team is unsure whether the family is wanting to be further involved.
Dr. Adiele testified that once a Disposition is received, Mr. Smith would be eligible to transfer to a less restrictive unit in one or two conference periods, possibly six weeks, if he has not shown any aggression during that time.
Following the assault on the staff member, Mr. Smith was placed in seclusion for two weeks. Mr. Davies noted that this was more than seven days, and no restriction of liberty notification was made. Mr. Smith was admitted to the Hospital in April. Between April and June, he was allowed full access to the unit and the yard. The incident in June meant that those privileges were taken away. When asked why the Hospital did not alert the Board, Dr. Adiele testified that the Hospital’s policy is to have a review by another clinician within the Hospital. If that clinician determines that seclusion is no longer required, the patient will be removed from seclusion if it is felt that it is no longer warranted.
In Dr. Adiele’s opinion, Mr. Smith had never left the secure unit. Dr. Adiele stated that seclusion meant that Mr. Smith was placed in a room by himself, and he could come out for meals, to shower, but the room was not locked.
Mr. Davies suggested to Dr. Adiele that if a patient’s liberties are restricted for a period greater than seven days, the Hospital is required to tell the Board, and the Board determines whether the ongoing restriction of liberty is appropriate rather than the Hospital. Dr. Adiele responded that Mr. Smith was restrained in jail before at which point the Alternate Chair redirected the discussion to what had occurred at the Hospital. When asked who at the Hospital would decide to notify the Board, Dr. Adiele responded that it would be management, likely the clinical director.
When Mr. Davies suggested to Dr. Adiele that the Board had not been notified, Dr. Adiele responded that they had not been notified to his knowledge, but Mr. Smith was not “stuck in seclusion.” Reviews of seclusion were done as required per Hospital policy after seven days. Dr. Adiele was unsure who had done the reviews of the continuing seclusion but after a short break indicated that records show that Dr. Carefoot reviewed the seclusion on June 25, 2025, which was the sixth day. Dr. Cameron, who works in the correctional system but also has an appointment at the Hospital, did the next review on July 2, 2025. Dr. Adiele then suggested that because the patient came out of the room during the day, the seclusion ended every day, and then the patient was “re-secluded” at the end of the day. Dr. Adiele was unsure of the exact date that Mr. Smith came out of seclusion but estimated that it was about two weeks. He reiterated that there were several terminations of the seclusion between those dates.
The Alternate Chair suggested to Dr. Adiele that fitness must be assessed on the date of the hearing and Dr. Adiele stated that he had seen the patient on Tuesday, September 2, 2025, two days prior to the hearing, and he did not believe that much had changed since that time.
Mr. Smith does not have a reality-based understanding of what occurs in court. He does not fully understand the nature of the court proceedings although he understands some elements.
No further evidence was presented.
Final Submissions of the Parties
Dr. Adiele maintained the Hospital’s initial recommendation that Mr. Smith is unfit and that a Detention Order Disposition is required to continue his treatment and protect the safety of the public. The recommended conditions are found at pages 60 and 61 of the Hospital Report.
Counsel for the Attorney General continued to support the Hospital’s recommendation. Counsel submitted that it seems clear from Dr. Adiele’s detailed report that Mr. Smith is currently unfit although he is closer to fit than he was at the initial assessment in April. The Disposition proposed by the Hospital provides wide discretion to the Hospital with respect to privileges. If Mr. Smith should become eligible for community living, it is evident from the Hospital Report that this would start as 24-hour supervised accommodation.
In counsel for the Attorney General’s submissions, the risk to public safety posed by Mr. Smith is obvious. He suffers form severe schizophrenia and has committed violent acts as recently as June. His insight is very suboptimal due to his ongoing symptoms of illness.
Counsel for the Attorney General further submitted that if there is a restriction of liberty beyond seven days, the ORB should be notified. The Hospital should err on the side of caution and send a notification.
Mr. Davies agreed that the Disposition proposed by the Hospital includes a broad range of liberties that Mr. Smith can exercise when he is ready. He stated that he did not have any submissions on fitness that would be of assistance to the panel.
In Mr. Davies’ opinion, there was a restriction of liberty because Mr. Smith was a patient on the unit and then was placed in seclusion. Dr. Adiele’s theory that relief from seclusion ends a period of seclusion and then it restarts would potentially remove the ORB from all decisions involving seclusion. As an example, Mr. Davies suggested that at Waypoint if the patient went for a shower, this would then reset seclusion, and it “would be difficult to accept that approach.” Mr. Smith exercised some liberties which were removed by seclusion, with relief, and the Hospital ought to have notified the Board of these circumstances. In his submissions, the law is clear that if the Hospital is in doubt a Campbell letter should be sent to the Board.
No further evidence was led.
Analysis and Disposition
Fitness
The fitness materials that were before the Court were included in the Hospital Report prepared by Dr. Adiele. Dr. Adiele testified that in his opinion Mr. Smith remains unfit to stand trial. Counsel for the Attorney General and for the Hospital agreed that Mr. Smith remained unfit and the panel concluded based on the evidence presented that he remained unfit.
The evidence did not establish, on a balance of probabilities, that Mr. Smith was fit to stand trial. Mr. Smith’s ability to answer fitness questions improved slightly between March 2025 (when he was found unfit by the Court) and the May 2025 assessment and then improved somewhat again shortly before the hearing. Nonetheless, we accept Dr. Adiele’s evidence that Mr. Smith was likely unfit due to his schizophrenia and the continued disorganization of his thoughts and continued hallucinations. Despite high doses of antipsychotic medications and treatment compliance, Dr. Adiele’s evidence was clear that more time is needed (perhaps months) for the medications to take full effect. Mr. Smith’s illness remains brittle, he is quick to anger, and approximately six weeks prior to the hearing, he committed a violent assault on a staff member.
While Mr. Smith is now able to understand more about the court process than when he was initially admitted, he is still unable to stay long for conversations and education about the court process before becoming angry or frustrated. He is now aware that he has been charged with criminal offences and can articulate that he can be found guilty or not guilty of the offences. Mr. Smith is aware that a lawyer can assist him, and he has been assisted in attempts to contact an Ottawa lawyer. He has some idea of the role of a judge. He has spoken about some of the events surrounding the alleged offences, but Dr. Adiele describes Mr. Smith’s descriptions as “patchy.” The Hospital still has minimal and incomplete information about Mr. Smith’s background.
We accept Dr. Adiele’s expert opinion that Mr. Smith is in the early stages of remission of his symptoms, but they continue to significantly impact his cognitive processes and ability to participate meaningfully in court proceedings and make decisions. Mr. Smith is thus unfit – see R. v. Bharwani, 2023 ONCA 203 at para. 167.
The Necessary and Appropriate Disposition
The panel accepted the Hospital and Attorney General’s submission that a Detention Order with privileges up to including community living was the necessary and appropriate Disposition. Mr. Smith is still acutely unwell and there has been insufficient time for the antipsychotic medications to take full effect. Mr. Smith’s risk to the public must be externally controlled and assertive treatment is required to control the unpredictable and violent manifestations of his symptoms. As recently as June, Mr. Smith required an extended period of seclusion to manage his physical aggression, and the unprovoked assault on a staff member (who has not yet been able to return to work) is particularly concerning. The Board is mindful that the risk assessment at page 59 of the Hospital Report notes that Mr. Smith presents a high risk to the safety of the public and a very high risk if released into the community without intensive supervision.
We have taken into consideration the factors at section 672.54 of the Criminal Code of Canada, namely the protection of the public, which is the paramount consideration, the mental condition of the accused, his reintegration into society and his other needs in coming to our unanimous finding.
As this was Mr. Smith’s initial hearing and he was not yet subject to a Disposition of the Board, there was no requirement for the Hospital to notify the Board of any restriction of liberty or that Mr. Smith had been placed in seclusion for an extended period.
Although there was not a reportable restriction of the accused’s liberty in this case, the evidence of Dr. Adiele raised concerns about the Hospital’s understanding of its reporting requirements. Dr. Adiele testified that when seclusion at the Hospital exceeds seven days, the seclusion is reviewed by a doctor who is not involved in the seclusion and a determination is made whether the seclusion should continue. In Mr. Smith’s case, his seclusion was reviewed on June 25, 2025 (the 6th day), then again by another doctor on July 2, 2025.
When questioned by panel members, Dr. Adiele suggested that each time a patient comes out of seclusion for a shower or meal, the seclusion ends. He suggested that it “depend[ed] on the definition” of seclusion and testified, “You can’t call it seclusion if someone actually exits that room and is out and about on the ward.” The Board agrees with Mr. Davies’ reasoning that, if this is the Hospital’s position on seclusion, the Board would potentially be removed from review of almost everyone’s seclusion under its jurisdiction.1
DATED this 6th day of November, 2025, at the City of Toronto, in the Toronto Region.
Ms. M. den Haan Legal Member
__________________
Office of the Registrar
Ontario Review Board
Footnotes
- The Board’s decision in R. v. Warner, 2025 CanLII 15875 (ON ORB) provides a thorough analysis concluding that the jurisdiction of the Board extends to reviewing a decision of a hospital to seclude an NCR accused for more than seven days.